Trio acquitted of rape but jailed for indecent assault

Court reporter for The Age

Three men acquitted of raping a young woman on an interstate buck's weekend will spend another two months in jail after being sentenced to prison terms for indecent assault.

County Court judge Michael Tinney said Desandren Pillay, 27, Walter Toganivalu, 26, and Fereti Dansey, 27, behaved in an extraordinary and disgraceful manner when they sexually assaulted the woman in a St Kilda Road hotel room in the early hours of August 22, 2010.

The woman had been celebrating her 18th birthday when she met a friend of the trio's at a nightclub and later had consensual sex with him, before Pillay, Toganivalu and Dansey entered the hotel room after their friend left and assaulted her.

The three men were charged with two counts of rape but were found not guilty of those charges earlier this month.

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It can now be reported they were found guilty of indecent assault in February by a first jury. That jury could not reach a verdict on the rape charges, which prompted a retrial.

Judge Tinney on Monday said he would not make a distinction between the three men upon who was the actual perpetrator, as they had all acted together in a criminal enterprise.

Judge Tinney acknowledged the difficulty the victim would have faced in preparing a victim impact statement for the indecent assault conviction and not the alleged rapes.

He said Pillay, the groom-to-be, and his friends had been fuelled by alcohol and a sense of freedom when they assaulted the woman while visiting Melbourne from Sydney.

Judge Tinney said the men's actions were "more than foolish behaviour", as their offending had had a lasting impact on the woman.

"How could it not? This was a serious and degrading example of unlawful assault and your victim has been deeply shaken by this act," he said.

"She has lost her sense of trust in people, she has lost her sense of self-confidence and avoids social settings, especially those that are likely to remind her of those events of August 2010."

The three men had exploited the woman's vulnerability given she was extremely drunk at the time, the court heard. The woman's mother told the court her daughter had never been the same since her 18th birthday.

"This was disgraceful and serious conduct committed upon a young woman who had the misfortune to meet up with you on the occasion of her 18th birthday," Judge Tinney said.

The court heard the men's parents had testified to their sons' good character. Judge Tinney said there was ample evidence of that, but those "traits, I have to say, were all noticeably absent on the night in question".

He said there was "little wonder" Pillay's engagement had ended once his fiancee learned of his conduct. The court heard the personal trainer had also been engaged a second time, but that relationship had also ended.

Judge Tinney said the long delay between the offence and sentence was a mitigating factor for the three men, as "dark clouds" would have constantly hovered over them.

But the same impact applied to their victim, he said. The victim impact statements from the woman and her mother made for "sad listening and sad reading", he said.

Judge Tinney acknowledged the effect being jailed interstate would have on Pillay, Dansey and Toganivalu, who were in protective custody following threats made by other prisoners.

Judge Tinney sentenced each of the three men to five-month jail terms, with an extra 10 months suspended for two years.

The men have been in custody since February, when the first jury found them guilty of indecent assault, which means they have two more months to serve.